[Rantman] Vermont Law School publishes environmental watch list for 2012

[rPauli]

These are the informed predictions of what might unfold in the courts
next year.    Snips cut for brevity.
               from:   http://vtdigger.org/2011/12/12/42434/

Vermont Law School publishes top 10 environmental watch list for 2012

Top 10 Environmental Watch List 2011-12

*#1 With Republicans Bashing the EPA, 2012 Could Be a Turning Point for
Environmental Regulation*

Summary: House Republicans and Republican presidential candidates have
launched unprecedented attacks on the Environmental Protection Agency,
saying environmental regulations are hurting the economy.

Among the other things causing Richard Nixon to turn over in his grave
may be Republican attacks on the Environmental Protection Agency, which
the former president and Congress established in a bipartisan response
to public demand for cleaner water, air, and land.
...
Whatever happens in the short term, bashing the EPA is bad for public
health and the economy in the long run. Richard Nixon and Congress knew
it a long time ago and the same holds true today.

*#2 EPA and White House Clash Over Ozone Standards*

Summary: President Obama's rejection of a controversial new air
pollution rule pleased industry but angered environmental and public
health advocates heading into the presidential election season.

The industry buzzwords "regulatory costs" and "economic burdens" have
special appeal in the current economic climate. But serious problems
from ozone exposure also impose significant costs and burdens on society.
...
Prudence and politics aside, this is not just a policy debate or an
election talking point. Delays in adopting tougher ozone standards put
Americans at continued risk for heart and lung disease. While CEOs look
to the next quarter and politicians plan for the next election year, a
delay in implementing tougher ozone standards could trigger health
problems that last a lifetime.

*# 3 Powder River Basin's Mother Lode of Coal at the Epicenter of Energy
Development*

Summary: The federal leasing of the Powder River Basin's massive coal
deposits opens the door to big profits, plentiful electricity, and
environmental degradation in a place both remote and central to the
world's energy future.

The Powder River Basin, a majestic landscape that also harbors America's
largest coal reserves, is nestled in remote eastern Montana and Wyoming.
The basin's pine-studded ridges, sandstone buttes and rivers are home to
ranches, farms, and wildlife that evoke the Old West.

But that panorama, and any hope of stabilizing our atmosphere's carbon
balance, may change dramatically because of the Interior Department's
decision on March 23, 2011, to allow mining of the basin's shallow seams
of subbituminous coal on federal lands. Coal companies, railroads, and
politicians all have their sights on the fossil fuel, which is low in
sulfur and tantalizingly easy to extract. So, too, does China.
...
Ultimately, the Powder River Basin's fate lies beyond the courts, where
challenges will likely stall and may not thwart the growing global
demand for coal. Decisions made by the Obama administration and state
officials about whether to approve coal leases in the basin will affect
the future of this remote and stunning environment. The implications on
climate change---a topic no government official has seriously
broached---are mind-boggling. Equally startling is the prospect of
tearing up a precious American landscape to stoke China's economic
juggernaut. As with Keystone XL and new Clean Air Act regulations, the
Obama administration has the opportunity to show true leadership at this
pivotal crossroads.

*# 4 Activists Claim Victory, Temporarily, on Disputed Keystone XL Pipeline*
Summary: The State Department has postponed a decision on the Keystone
XL pipeline, a controversial proposal to carry tar sands oil across the
U.S. heartland. While opponents of the project view this as a major
victory, the fate of the pipeline remains unclear.

Just south of the Arctic tundra, the boreal forest encircles the globe
in an evergreen belt that is largely free of roads and other human
development. Home to countless plant and animal species and indigenous
peoples, Canada's boreal forest is a natural and cultural treasure, but
it also has one of the largest oil reserves in the world, second only to
the deserts of Saudi Arabia.
...
The Obama administration's decision was a major victory for
environmentalists, but the fight isn't over. Many believe the pipeline
has been fatally wounded, a view strengthened by signs that Obama's
decision will further fuel opposition in Canada and that the financial
arrangements supporting the pipeline could unravel. With continued
pressure and action, environmentalists can now hope for an eventual
defeat of the Keystone XL pipeline.

*# 5 EPA, Transportation Department Step Up Sector-by-Sector Regulation
of Greenhouse Gas Emissions*

Summary: 2012 will be a key time for U.S. climate change policy as the
Obama administration appears ready to tackle one industry sector at a
time. Toughened fuel economy standards for vehicles are critical to
reducing oil consumption, greenhouse gases, and consumer expenses, but
much more work remains to be done across a range of industries.

Congress' momentum to address the climate crisis has died, shifting the
debate over U.S. climate policy to the regulatory arena. President Obama
has had a poor track record on environmental decisions in 2011, most
notably his egregious retreat from stricter national standards on ozone,
but 2012 presents a new chance for the White House to support the
Environmental Protection Agency's efforts to develop tougher rules for
major polluting industries.
....

The EPA is also under pressure from citizen groups to begin regulating
greenhouse gas emissions from cement plants, landfills, coal mines, and
factory farms. As the 2012 election approaches, however, other voices
are calling for a reduction in government spending and a relaxation of
regulatory controls. The EPA has been the target of numerous legislative
efforts to cut its funding and limit its regulatory authority,
particularly with respect to greenhouse gas regulations. The future
looks uncertain, but with so much at stake and with so many critical
decisions ahead, 2012 will certainly affect the outlook of U.S. climate
change policy.
*
# 6 Federal Appeals Court Settles Roadless Rule... For Now*

Summary: A federal appeals court ruling limits new road building in wild
areas, but the debate won't be resolved until Congress acts.

While the debate over the fate of millions of "roadless" acres of
National Forests is unresolved, the U.S. Court of Appeals for the 10th
Circuit recently solidified interim protections for those lands in the
Rocky Mountains, giving Congress yet another opportunity to protect
these pristine areas for posterity.

... The agency has mostly ended its decades-long logging binge and seeks
to manage public lands for ecosystem and recreation values. But the fate
of these lands remains in legal limbo, underscoring the larger societal
debate over preservation versus utilization. President Obama, charting a
centrist course, has not resolved the debate. His administration has
encouraged states to use the now-defunct Bush State Petitions Rule but
also issued an administrative directive akin to the Clinton roadless
rule. Some politicians are trying to solve the roadless issue in their
home states, but they do so at great political risk. The 10th Circuit's
decision is an important milestone in the roadless rule debate, but
until Congress acts, the fate of these public lands remains unresolved.

*# 7 Fukushima Fallout Affects Global Energy Security, Cost, Safety,
Grid Reliability*

Summary: The world's response to the Fukushima disaster puts the future
of a low-carbon energy future in doubt, but nuclear power remains on the
table despite safety and cost concerns.

The nuclear industry's potentially bright future dimmed considerably on
March 11, 2011, when a natural disaster disabled the Fukushima Daiichi
Nuclear Power Station in Japan and highlighted nuclear power's role as
the world's most polarizing energy source.
...
The Fukushima disaster received the highest possible rating of seven on
the International Nuclear and Radiological Event Scale. Japanese
officials estimated it may be more than 20 years before residents can
safely return to the area. Studies confirm substantial releases of
long-lived radioactive materials such as cesium-137, a known carcinogen,
into the atmosphere and Pacific Ocean. The long-term ecological and
social impacts remain unclear.

Political responses to Fukushima are changing the future of nuclear
power globally. German Chancellor Angela Merkel, once a proponent of
nuclear power, announced a phase-out of that nation's 17 nuclear plants
by 2022. No other nation has gone so far.
...
... flatly rejecting nuclear power leaves the world less able to cope
with climate change. Instead, we need an effective policy that balances
nuclear power's environmental and health costs against the costs of
climate change.

According to the International Energy Agency, without further action to
reduce carbon emissions in the next five years, the world will be locked
into irreversible climate change. We must start aggressively improving
efficiency and deploying clean energy now. The debate will continue on
how "clean" and cost-effective nuclear power is. New nuclear power
plants could provide short-term reductions in carbon emissions by
displacing coal plants and provide the back-up necessary for an increase
in renewable energy. But investment in new nuclear plants is
shortsighted without immediate and substantial investment in less
visible and urgently needed measures to improve end-user efficiency,
regardless of energy source.

Love it or hate it, it's too soon to take nuclear power off the table.
But weigh all the costs, thoroughly promote energy efficiency, and put
the necessary regulatory safety structures in place before embracing
nuclear power as the silver bullet against climate change.

*# 8 U.S. Supreme Court Rejects Bid to Regulate Greenhouse Gases Under
Federal Common Law*

Summary: The U.S. Supreme Court's ruling that states can not use federal
common law to restrict greenhouse gas emissions leaves open the
questions of whether they can sue under state law and whether climate
change victims can seek damages through the courts. The issues are
likely to be litigated soon.
...
That brings us to Native Village of Kivalina v. ExxonMobile Corp., a
significant case for climate change victims. Kivalina is an Inupiat
village with about 400 residents on the tip of a barrier reef along the
northwest coast of Alaska. The village has historically been sheltered
from winter storms by a barrier of sea ice, but rising temperatures have
reduced and delayed the accumulation of sea ice in recent years. That's
exposed Kivalina to unprecedented erosion and flooding from otherwise
diverted storm surges. The village's governing body predicts residents
will have to relocate at an estimated cost of up to $400 million. In
February 2008, Kivalina filed suit against two dozen power companies in
federal district court in California in an effort to recover damages for
the cost of relocation. Kivalina alleges that the power companies "knew
or should have known of the impacts on global warming and on
particularly vulnerable communities such as [Kivalina]." Further, the
complaint alleges the power companies actively conspired to deceive the
public about the dangers of global warming.
...
... Kivalina argues that the case should proceed based on state common
law. Ultimately, the Kivalinans say the oil companies should be held
strictly liable for the damage in light of their failure to take any
steps to lessen the harm. Industry lawyers used to dismiss climate
change lawsuits as frivolous, but an ancient way of life may soon
disappear in Kivalina. There's nothing frivolous about that, and those
who are causing it should pay for it.

*# 9 Landmark Settlement Under the Endangered Species Act*

Summary: A federal court approved a major settlement that likely means
many more imperiled species and their habitats will be protected.
...
Under these agreements, the FWS must establish annual work plans that
gradually reduce the backlog of nearly 800 species over a six-year
period,...
...
This settlement marks a turning point in the protracted battles over the
listing program and gives the FWS some breathing room to catch up with
its legal obligations. Perhaps most importantly, and central to this
recent litigation, the ESA sets strict deadlines for evaluating threats
to species and determining whether a species should be listed. The ESA
also requires designation of critical habitat at the same time as
listing "to the maximum extent prudent and determinable." Although
economic concerns are not considered in the context of listing, they
must be incorporated for critical habitat designations.
...
More controversial decisions can be expected as the FWS works its way
through the huge backlog of candidates. The species and their habitats
span the United States, including 403 aquatic species in the Southeast
that are slated for an initial determination in 2012. If only a fraction
is listed, it will have significant impacts on water allocation,
industrial uses, and other activities. Other candidates range from the
New England cottontail and Bicknell's thrush in the Northeast to the
coqui llanero (a tiny tree frog) in Puerto Rico. Also, the wolverine and
Pacific walrus are to be considered in 2013-14.
...
At the same time, the ESA is credited with saving hundreds of species
from extinction, from the charismatic bald eagle and whooping crane to
the more humble Salt Creek tiger beetle and Karner blue butterfly. The
U.S. Supreme Court has ruled that Congress passed the ESA "to halt and
reverse the trend toward species extinction whatever the cost." Moving
forward, this goal will be put to the test for the hundreds of species
covered by these settlement agreements.

*# 10 Combating Climate Change Through Enforcement: EPA v. TVA*

Summary: In a multi-billion dollar legal settlement with one of the
nation's biggest coal-fired polluters, the Environmental Protection
Agency used the Clean Air Act creatively to achieve a major step toward
cleaning up the nation's air, saving lives, and reducing health care costs.

Since the Depression, the Tennessee Valley Authority has brought
electricity to millions of Americans, a feat of modernization that also
has spread acid rain, disease, and climate change. But on April 14,
2011, the Environmental Protection Agency reached a landmark settlement
after nearly 12 years of litigation and negotiation with the TVA, one of
the largest owners and operators of coal-fired power plants in the
United States. The settlement resolved Clean Air Act violations at 11 of
TVA's plants....
...
The TVA's commitment to closing and retrofitting its facilities is
designed to reduce its emissions of nitrogen oxides by 69 percent and
sulfur dioxide by 67 percent. Together, these pollutants cause a host of
environmental problems, including smog, water quality deterioration, and
acid rain. In addition, they are linked to heart and lung diseases that
can lead to increased hospital admissions and premature death. By
reducing the TVA's emissions, the EPA estimates $11 billion to $27
billion per year in added health benefits.
....
The mitigation projects are designed to reduce carbon dioxide emissions
by 30 million tons. The EPA currently does not regulate carbon dioxide
emissions from stationary sources, either as a criteria pollutant or as
a hazardous air pollutant. But in the settlement with the TVA, the EPA
is creatively using this Clean Air Act settlement process as a way to
achieve carbon dioxide reductions. This suggests that in future cases,
the EPA will look to obtain carbon dioxide reductions as one of the key
settlement terms and conditions. Thus, the agency may achieve through
enforcement what the United States has failed to do by
legislation---achieve meaningful carbon dioxide reductions from major
polluters as a step toward combating climate change.

SPECIAL MENTION:

*FERC's Order 1000 Seeks to Overhaul Electricity Transmission Planning
and Cost Allocation*

Summary: FERC's ambitious energy policy would accommodate new
transmission lines serving renewable energy projects.

Although a comprehensive federal clean energy policy stalled when
Congress failed to pass a clean energy bill in 2009, energy policy in
America is not at a standstill. The Federal Energy Regulatory
Commission's latest order---Order 1000---is an ambitious new policy that
aims to accomplish two sizable goals simultaneously. First, it
encourages a more coordinated build-out of the new electric transmission
lines the country needs to maintain electric reliability. Second, it
aims to allow large-scale renewable energy projects to connect to the
grid. Perhaps partly because of its ambitious goals, FERC's latest order
has drawn both criticism and praise.
...
Order 1000 may lay the groundwork for large-scale development of
renewable energy by facilitating a build out of electric transmission
lines connecting renewable energy resources and load centers. But
litigation may also reshape the order to make it more responsive to
concerns that FERC has overreached its regulatory powers, created
inequitable cost-sharing for new transmission lines, or made it harder
for local renewable energy projects to be effectively planned.

*OTHER ISSUES TO WATCH

Is Coal Ash Hazardous Waste?*

It's past time for coal ash to be treated for what it is---dangerous to
our health and planet. Instead, nearly three years after the worst coal
ash spill in U.S. history, Congress is considering stripping the
Environmental Protection Agency of its ability to decide if coal ash
should be regulated as a hazardous waste. 2012 could be a pivotal time
on this issue.
...
On December 22, 2008, a coal ash impoundment wall collapsed at the
Tennessee Valley Authority's Kingston power plant. The disaster sent 5.4
million cubic yards of toxin-laden sludge into the Emory River and onto
surrounding land in eastern Tennessee. The disaster included more than
300 acres of damage, high levels of heavy metals, and estimated cleanup
costs of more than $1 billion. In response, the EPA proposed regulating
coal ash as a hazardous waste under the Resource Conservation and
Recovery Act. The act would give the EPA the authority to control
hazardous waste from the cradle-to-grave.
...

*What to Watch on Fracking*

Anyone who has seen the documentary film Gasland or YouTube videos of
tap water on fire probably has a good idea of the environmental and
health risks associated with hydraulic fracturing. "Fracking" involves
injecting chemicals, water, and sand into the earth to fracture shale
and open fissures through which natural gas will freely flow.
As noted in the film and in numerous nonprofit group materials (e.g.,
Riverkeeper, Sierra Club, NRDC, NWF, EarthWorks), fracking impacts
include well explosions, severely contaminated drinking and surface
waters, air pollution, and potentially earthquakes. But the fracking
industry is exempt from key provisions of federal environmental laws. In
the face of this regulatory vacuum, the public is moving on multiple
fronts.
...
*Updated Department of Interior regulations for fracking on public
lands, including required disclosure of fracking chemicals*

The release of initial research results in the EPA's Hydraulic
Fracturing Study relating to ground and drinking water
...
An EPA Permitting Guidance on Underground Injection Control for
facilities that use diesel fuels in their injection fluids


Article printed from VTDigger: http://vtdigger.org

URL to article: http://vtdigger.org/2011/12/12/42434/



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